Legal reasonings + models of legal argumentation Flashcards
ARGUMENTATION
linguistic + social activity aiming at increasing the acceptability of a controversial claim.
speakers advance a set of reasons aimed at justifying/disproving a claim
argumentation ≠ internal reasoning
performed publicly
purposes: persuading counterpart/3rd party
develops in a dialectical exchange between at least 2 ppl
Contexts of legal argumentation
- legislative debate
- litigation context
- decisional stage
- justificational stage
LEGISLATIVE DEBATE
- obj of controversy: legal proposal/claim of a party
- argumentation follows parliamentary regulations
- outcome = deliberation
- purpose: to convince (the undecided or the pub opinion)
LITIGATION CONTEXT
purpose: to persuade decision-makers (judges/jury/court)
DECISIONAL STAGE
only concerns systems in which decision-makers is collegial
monocratic judges won’t carry out arguments at this stage (despite the use of the same inferences)
JUSTIFICATIONAL STAGE
concerns systems which require pub + written justification
= set of decisional reasons to justify the outcome
purpose: convinec the public of the correctness of the solution
role of LOGIC in legal argumentation
logic is the criteria of corectnessof reasoning.
REASONING + ≠ types
process that, starting from premises, leads to a conclusion
- deductive resoning
- non-deductive reasoning
DEDUCTIVE INFERENCES
if premises T => conclusion necessarily T
NON-DEDUCTIVE INFERENCES
conclusion can be F even though premises are T
MODELS OF LEGAL ARGUMENTATION
- syllogism - Beccaria
- Wroblewski’s model
- double justification model - Canale + Tuzet
SYLLOGISM
- major premis: genaral law
- minor premis: facts => conformity/opposition to the law
- conclusion: liberty/legal consequence
Judges must make only 1 syllogism as it leads to certainty, but if they make another one usig the conclusion it does not mean that the reasoning will lead to certainty.
problems of syllogism
- reconstruction of the fact is not always necessarily T or complete
- law is general + open
- legal gaps
- law isn’t always precise (eg: some laws give discretion to judges in assigning the number of imprisonment by giving them a range of years)
WROBLEWSKI’s MODEL
judges make 3 decisions on:
- interpretation
- relevance of the facts
- final outcome
premises must be justified
conclusion must be justified by the premises
DOUBLE JUSTIFICATION MODEL
internal justification of conclusion (deductive)
external justification of premises (abductive)
->premises are like hp because evidence is not always complete
values of double justification method
- legality: decisions made according to the law
- legal certainty: predictability of decisions as laws are preexisting + knowable (publicity of the law)
- equity under the law: alike cases treated the same, ≠ cases treated ≠ly
- full justification: arguments are given to support premises that justify conclusion
EXTERNAL JUSTIFICATION
> premise: normative -> interp/integrative arg
< premise: factual -> evidentiary arg
elemts for judicial decision analysis
NEJ (abduction)
IEJ (abduction)
final decision + internal justification (deduction)
INTERPRETATIVE ARGUMENT
canons + directives of interp of normative texts
usually defined in legal practice or by the legal doctrine + legal science
INTEGRATIVE ARGUMENT
used when there is a gap in the law
=> justifies the construction of implicit/unexpr rule
functions of the interp arg
- decisional function: used as instruments of interp
- justificatory function: used as reasons explicitly stated in the reasoning of the judicial decision
